- (1.) These petitions under Article 32 of the Constitution challenge the constitutionality of some of the provisions of the Bombay Police Act. 22 of 1951 (which hereinafter will be referred to as "The Act"), with special reference to S. 56, as also of the orders passed against them externing them under that section of the Act.
(2.) In Petition No. 439 of 1955 Babubhai Dullabhbhai Bhandari is the petitioner and the District Magistrate of Thana, the Deputy Superintendent of Police and Sub-Divisional Police Officer, Bhivandi Division, Bhiwandi, District Thana, and the State of Bombay are respondents 1, 2 and 3. The petitioner is a citizen of India and carries on trade in grass in Bhilad, a railway station on the Western Railway. On 21st January 1955 the Deputy Superintendent of Police and Sub-Divisional Police Officer, Bhiwandi Division, served a notice under S. 56 of the Act in the following terms :- No. Ext. 3/1 of 1955 Office of the S.D.P.O. Bhiwandi, Bhiwandi, dated 21-1-1955. (I) I, Shri C. V. Bapat, Deputy Superintendent of Police and Sub-Divisional Office, Bhiwandi Division, District Thana, do hereby issue a notice to you, Shri Bhagu Dubal Bhandari alias Bhagwanbhai Dulla Bhai Jadhav of Bhilad District Thana, that it is proposed that you should be removed outside the District of Thana and you should not enter or return to the said district for a period of two years from the date of the order to be made under S. 56, Bombay Police Act, 1951, for the following reasons :- (II) Evidence is forthcoming that your following activities have caused and are calculated to cause alarm, danger and harm to person and property in Bhilad and the surrounding areas :- (1) You have been dealing in smuggled foreign liquor and maintained a veil of secrecy by criminal intimidation and physical violence to the villagers and other right thinking persons. 2. Your activities have been in continuation of your similar activities for the last five years, given as under:- (a) You criminally assaulted persons with the help of your associates and did violent acts in order to strike terror into the hearts of the villagers, so that they should not challenge you or your men. (b) You have been criminally assaulting and intimidating Central Excise and Custom officials with the help of your gang, so as to stop them from looking into your anti-national, anti-social and illegal activities. As a result of your unlawful and dangerous activities you are held in terrific awe by the Central Excise and Custom Officers and men and villagers in Bhilad area who are continuously labouring under grave apprehension of danger to their person and property. (c) You and your associates were and are making use of criminal intimidation against the villagers in order to prevent them for having recourse to legal means. (III) That you and your associates are also understood to be in possession of unlicensed firearms which has been causing considerable alarm and spreading a feeling of insecurity of life and property in the mind of villagers from Bhilad and neighboring villages and Central Excise and Customs employees. (IV) the witnesses are not willing to come forward and to give evidence against you be reason of apprehension of danger and harm to their person and property. (V) Now, I Shri C. V. Bapat, Deputy Superintendent of Police and Sub-Divisional Police Officer, Bhiwandi Division, District Thane in exercise of the authority conferred upon me under S. 59, Bombay Police Act, 1951 by the District Magistrate, Thana under his number MAG 2/EX dated 17.1.1955 do hereby direct you to appear before me at 11 a.m. on 27-1-1955 at Dahanu in the office of the Sub-Divisional Police Officer, Dahanu for tendering your explanation regarding the said allegation. You are also entitled to appear before me by advocate for the purpose of tendering your explanation and examining witnesses produced by you. Signed and sealed this day of 21st Jan. 1955. Sd. .............. Deputy Superintendent of Police and Sub-Divisional Police and Sub-Divisional Police Officer, Bhiwandi. To, Shri Bhagu Dubala Bhandari alias Bhagwanbhai Dullabhai Jadhav of Bhilad, District Thana". By that notice the petitioner was called upon to appear before the said police officer on the 27th January 1955 in order to enable the former to offer such explanation and examine such witnesses as he may be advised. In pursuance of that notice the petitioner appeared before the police officer aforesaid and the hearing of his case took place on different dates. The petitioner claims to have examined seven "respectable persons" to testify on his behalf. Ultimately on the 11th July 1955 an order was passed by the District Magistrate of Thana externing the petitioner outside the Thana District. The order of Externment is Ex. D to the petition and contains the recitals that after considering the evidence before him and the explanation offered by the petitioner the District Magistrate of Thana (the 1st respondent) was satisfied that the petitioner. "engages in giving threats and assaulting Central Excise and Customs Officials men and residents of Bhilad and surrounding villages and indulges in illicit traffic of foreign liquor from Daman." and that in his opinion "witnesses are not willing to come forward to give evidence in public against the said Shri Bhagubhai Dullabhbhai Bhandari alias Bhagwanbhai Dullabhai Jadhav of Bhilad by reason of apprehension on their part as regards the safety of their person and property." It is this order which is challenged as illegal and 'ultra vires' and against which the petitioner has moved this Court for an appropriate writ, direction or order against the respondents prohibiting them, their servants and agents from acing upon or taking any steps in enforcement, furtherance or pursuance of the said order and from interfering in any manner with the petitioner's right to reside in Bhilad and carry on his business. The petitioner had preferred an appeal to the Government against the said order of externment. But the appeal was dismissed on the 9th September 1955. Against the said order the petitioner moved the High court of Judicature at Bombay under Art. 226 of the Constitution, but the said application was also dismissed 'in limine' by the High Court by its order dated the 7th November 1955.
(3.) The District Magistrate of Thana, the 1st respondent has sworn to the affidavit filed in this Court in answer to the petition. He swears that he had passed the Externment order complained against after perusing the police reports and going through the explanation offered by the petitioner and the statements of the witnesses produced by him and on hearing his advocate. He further states in the affidavit that the general nature of the material allegations against the petitioner was given to him, that the material given to him was clear and by no means vague. Only the names of the persons who had given the information against the petitioner were not disclosed to him inasmuch as those persons were not prepared to come out in the open and depose against him in public as witnesses. He was satisfied that witnesses were unwilling to come forward to give evidence in public against the petitioner. He also affirms that the petitioner's movements and acts were not only causing alarm, danger or harm to personal property of the general public round about Bhilad but also that his movements and acts were causing danger and alarm to public servants of the police force and the Central Excise who were doing very responsible work at Bhilad which is on the borderline of the Indian territory adjoining Daman area which is Portuguese territory. He admits that the petitioner was discharged by the Judicial Magistrate, First Class, Umbergaon because the witnesses did not appear and depose against him for fear of the petitioner.;